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Police intercepted communications in at least two operations through a wiretap that was authorized seven years after the killing of Mohamed Jama Ali, 26, outside the Bar 56 nightclub on May 7, 2009. Both led to charges, but neither investigation yielded charges related to the homicide./ Submitted photo

Ottawa gang members serving penitentiary sentences on fentanyl trafficking and other offences are already lining up to appeal their convictions following a recent judge’s decision to exclude key wiretap evidence from a separate trial.

In a decision Aug. 22 in the robbery and assault trial of Faysal Bashir and Said Muddei, Superior Court Justice Sylvia Corthorn ruled the charter rights of the two accused were breached by a sweeping authorization for wiretaps on local gang members who police believed had information on an unsolved 2009 homicide.

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The judge ruled police “failed to establish reasonable and probable grounds that the (wiretap), if granted, would afford evidence of the homicide,” and concluded the intercepted communications were “obtained in violation of Mr. Bashir’s and Mr. Muddei’s respective rights.”

The decision is grounds for appeal, according to defence lawyer Michael Spratt and others involved in a previous trial for members of a fentanyl-trafficking ring known as The Fazeli Group, which was busted by a police anti-gang task force in 2017 using wiretaps authorized by the same affidavit that has now been ruled in violation of charter rights.

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Police intercepted communications in at least two operations through a wiretap that was authorized seven years after the killing of Mohamed Jama Ali, 26, outside the Bar 56 nightclub on May 7, 2009. Both led to charges, but neither investigation yielded charges related to the homicide.

The wiretap evidence has now been excluded from the upcoming trial of Bashir and Muddei on robbery, assault and weapons charges, with the ruling describing the Crown’s case against Bashir as “weakened” without the wiretaps, while the case against Muddei would be “gutted”.

But in a separate December 2018 ruling in the case of The Fazeli Group, Ontario Court Justice Trevor Brown allowed the prosecution to use the wiretap evidence to help secure convictions against several gang members, who, according to Spratt, are now planning appeals.

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“It is perhaps the best grounds for an appeal,” Spratt said in an interview. “It’s the exact same case, but a different judge decided it differently, which shows there is a distinct possibility that Justice Brown got it wrong.”

Spratt led arguments in 2018 on behalf of Adnan “Ace” Fazeli, the group’s purported ringleader, though charges were eventually withdrawn against him, which Spratt called “delicious irony” considering prosecutors named the group after his client.

Others who were found guilty at trial, though, have already contacted his office to discuss a plan to appeal those convictions.

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Spratt was blunt in his assessment of police tactics, calling the investigation “an unprecedented dragnet” that gathered no new evidence of the unsolved homicide, but instead amounted to broad surveillance on a number of “unrelated” criminal activities.

“Those wiretaps led directly to surveillance and the seizing of drugs. Without those intercepts, that the Superior Court has found were unconstitutional and excluded in the Bashir case, the Crown would not have had any reasonable prospect against anyone in the drug prosecution (against the Fazeli Group).”

Spratt said he expects each of those who were found guilty and convicted of various drug-trafficking charges will pursue an appeal.

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“It was a widespread and still very concerning use of wiretaps on a very old murder, without grounds to gather intelligence in an unprecedented dragnet,” Spratt said. “I think, although (Brown) disagreed, it is an undue infringement on people’s privacy.”

The wide scope and breadth of those police actions, as Spratt argued in court in 2018, “was never communicated to the issuing justice” who signed off on the warrant.

In her recent ruling in the case of Bashir and Muddei, Corthorn agreed there was no “bad faith” on the part of police, but the judge said through “carelessness or inadvertence . . . (police) unintentionally misled the issuing judge on the issue of reasonable and probable grounds” when seeking the warrant.

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Defence lawyer Solomon Friedman successfully led the charter arguments on behalf of Bashir in August. Bashir is represented by Friedman and Fady Mansour, while Muddei is represented by Diane Condo.

In an interview, Spratt said he filed the same legal materials and “made the exact same legal arguments” in 2018, but the judge “came to a different conclusion with respect to the charter violation.”

The charges against The Fazeli Group were related to drug trafficking, the separate charges against Bashir and Muddei related to a robbery and assault in Vanier, and, as Spratt noted, “neither case had anything to do with this almost-decade-old murder.”

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“There had been no new information for a number of years, so this leads to the suspicion they weren’t using this (wiretap) to solve the homicide at all, because they had no new information that prompted it,” Spratt charged. “But rather they were using this as a pretext to conduct covert surveillance and interception of people’s phone calls, where they wouldn’t otherwise have grounds to do it. They were just trolling for information.”

Ottawa police declined comment, citing matters before the court. The Crown’s office, through the Ministry of the Attorney General, likewise declined comment.

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Spratt suggested several of those implicated in the fentanyl ring, which include Amanda Mengesha, Patrick Thibault, and Mathieu Vaillant, entered not guilty pleas “because they wanted to maintain their ability to appeal Brown’s decision on the wiretaps.”

That plan now appears to be in motion, as Spratt confirmed several of those currently serving time “have been in touch with our office” regarding appeals.

In prosecuting The Fazeli Group, Spratt said the Crown relied “almost entirely” on evidence collected through wiretaps.

“It was a very circumstantial case,” Spratt said.

The communications that intercepted Fazeli himself were “innocuous” and “benign”, Spratt said, and, “It would take a lot of guesswork to rope him into a conspiracy. It likely would not have met the legal test to prove beyond a reasonable doubt he was a member of a criminal organization.”

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As Friedman argued before Corthorn, police could have employed less-intrusive methods, which require a much lower legal threshold and carry fewer risks of upsetting the courts.

Spratt said those were among the “main arguments” he made in 2018.

“There were other steps the police could have taken before resorting to the most intrusive step: they could have looked at phone logs to see if the individuals they suspected were staying in touch with one another; they could have gotten production orders to see if there were other forms of communication, or they could have just engaged in normal surveillance.”